The Perils Of The Never-Ending Personal Injury Trial

Last week The Times Leader in Wilkes-Barre reported:

A federal jury on Tuesday ruled against an area woman who was seeking more than $20 million from Toys R Us for injuries she allegedly suffered when an oversized candy dispenser fell and struck her in the head.

The jury, which heard from several dozen medical and other experts over a six-week trial, deliberated for about two hours before finding the national toy store chain was not negligent in connection with the Oct. 26, 2008, incident involving Dr. Mary Elizabeth Jordan Flickinger of Clarks Summit.

Flickinger alleged she suffered debilitating injuries, including several herniated discs, when a large M&M candy dispenser at the chain’s flagship store in New York City dislodged as she attempted to dispense candy. The dispenser struck her in the head and snapped her neck back, according to the lawsuit filed in 2010.

It’s always jarring to hear personal injury lawsuits referred to as claims for specific amounts of money (here, that “more than $20 million”) because many states, including Pennsylvania, don’t allow trial lawyers (whether plaintiffs’ or defendants’) to recommend specific sums of money to the jury. You’re allowed to introduce as evidence bills the plaintiff incurred (medical bills, funeral expenses, etc). You can have doctors, nurses, and life care planners talk about the cost of future medical care. You can even have an economist get up on the stand and give ranges for lost wages and the impact of inflation, but you can’t just tell the jury how much you think all of that adds up to.

I don’t have the slightest doubt that jurors are completely confused why the lawyers keep throwing around monetary figures and yet, when it comes to the case as a whole, the lawyers skirt around the issue of money (because they’re not allowed to) and start talking about justice and fairness and other off-putting banalities. The jury never hears how much the plaintiff believes their “pain and suffering” is really worth, they just have to figure it out on their own.

The court filings that only the judge sees, though, are filled with monetary figures, like the pretrial memoranda filed by plaintiff (a copy here), the source of that “$20 million” number claiming economic damages of $7,000,000 to $12,000,000 and pain and suffering of $5,000,000. The jury never saw that, it’s just for the judge to understand what the parties thought of the case.

An interesting point from those pre-trial memoranda (defendant’s is here) relates to the length of the trial. Plaintiffs punted on predicting the length of the trial until Daubert motions were decided; Defendant thought the case would last 12 to 15 days, or somewhere in the neighborhood of three weeks, not the six that it actually took.

Which is where I think the case went wrong for the plaintiff.

Let’s assume the Plaintiff indeed suffered this entire list of injuries:

a. Traumatic C5-6 right cervical disk herniation with cord effacement;

b. C4-5 left paracentral disk protrusion;

c. C6- 7 left paracentral disk protrusion;

d. Significant atlantoaxial joint pain and arthropathy C l-C2;

e. Severe cervical myofascial pain syndrome involving the right cervical paraspinals, right trapezius, right rhomboids, right supraspinatus, and shoulder and neck musculature;

f. Right cervical radiculopathy, C6 secondary to the right C5-6 disk herniation;

g. Chronic pain secondary to the disk herniations at multiple levels, and the facet arthropathy, cervical radiculopathy, and myofascial pain;

h. History of migraine headaches which were controlled but are now triggered by musculoskeletal headaches due to the cervical disk herniation, facet arthropathy, and myofascial pain;

1. Sensory loss in the right upper extremity in the right C6 dermatome distribution;

J. Sleep disruption and depression secondary to myofascial pain and cervical disk herniation and atlantoaxial joint pain;

k. Major Depressive Disorder;

i. Panic Disorder without Agoraphobia;

m. Posttraumatic Stress Disorder;

n. Generalized Anxiety Disorder;

o. Sense of worthlessness compared to her prior image as super mom and her inability to contribute as actively in both her work and her family life; and

p. Physical impairment and disability with regards to marital relationship secondary to the cervical involvement.

To those that don’t spend their time around people in chronic pain, it can seem a bit silly that someone would suffer PTSD from an event in which the immediate injuries were not serious enough to convince the plaintiff to stick around for medical treatment, but it’s nothing to scoff at; that sort of neck impact / disc bulging injury is treated through an endless series of minor neck and shoulder surgeries. If you’ve ever known someone who has gone through multiple surgeries to treat the same issue, you know how quickly it can cause someone to spiral into depression. A couple compressed discs can cause someone to wince in pain every now and then or cause them to obsess over the injury for years; which category a particular person falls into is often more a question of chance than personal disposition.

But six weeks of trial? The first Vioxx trial was only five weeks long, and it included testimony from a variety of experts, Merck corporate officers, doctors, and the like discussing pharmacology, cardiology, corporate governance, and regulatory control. This case involved a display rack at a store falling on a customer. From looking at the pre-trial memos, the plaintiffs intended to call more than a dozen expert witnesses to testify about the case. I don’t doubt each expert had relevant, non-cumulative testimony — if their opinions were irrelevant or cumulative, they should be excluded by the trial judge — but I also imagine some of that testimony could have been cut down.

That sort of paring down is easier said than done. Many courts today aggressively look for any reason to deny plaintiffs relief and will disqualify or limit an expert’s testimony in a way that frustrates their case, leading many plaintiffs’ lawyers to adopt a belt-and-suspenders approach in which every instance of even remotely “scientific, technical, or other specialized knowledge” has an expert at the ready to testify. It’s not cheap, but losing the case certainly isn’t cheaper.

Adding fuel to the fire, just like how juries respond when trial lawyers really believe in their clients’ causes, juries unconsciously and consciously evaluate cases in part by assessing how seriously lawyers take the cases. An important, multi-million dollar trial surely takes more than a day or two, right?

But there’s the rub. No matter how strong the impulse to throw kitchen sink into the trial, and even if you somehow find a judge willing to let you do it, you have to remember that, when all is said and done, you are trying to convince a dozen people who have been compelled under threat of criminal penalty to listen to you. Would a shorter trial, with fewer witnesses and a more concise presentation, changed the result in Flickinger’s case against Toys R Us? I of course don’t know that, but just two hours of deliberation before finding the company not negligent suggests to me that a lot of people felt their time was wasted over those past six weeks. That certainly didn’t help her cause.

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